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Friday, May 24, 2013

How did Scalia's anti-federalism bluster in City of Arlington v. FCC go unnoticed by six justices?

Over the past decade, Justice Scalia has issued some oddly crabbed definitions of "federalism," but he has not always carried a majority for such sentiments. Unfortunately, his majority opinion in City of Arlington v. FCC, handed down this week, repeated the notion that federalism is irrelevant whenever Congress has "expressly" regulated some field. Consider the following paragraph at page 14 of the slip opinion:

[T]his case has nothing to do with federalism. Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning authorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a question of federal law. We rejected a similar faux-federalism argument in the Iowa Utilities Board case, in terms that apply equally here: “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U. S., at 379, n. 6. These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges. “[I]t is hard to spark a passionate ‘States’ rights’
debate over that detail.” Ibid.

This paragraph is rich with a kind of calculated confusion about the meaning of "federalism," confusion that is capable of a lot of mischief if it is taken seriously in future opinions. After the jump, I will suggest that the vision of federalism implied by this paragraph suggests why the some have accused the SCOTUS of a pro-business bias. The pro-business effect is real, but the theory of federalism is entirely principled, having been set forth by Caleb Nelson in an influential law review article and only one vote short of gaining a SCOTUS majority in PLIVA v. Mensing.

The problem with Scalia's paragraph is not that it could not be justified on principled grounds but rather that Scalia almost defiantly refuses to provide any such justification, instead engaging in pure rhetorical bluster. Kennedy refused to join Justice Thomas' endorsement of Caleb's theory in Mensing: Why did he fall for the same theory when Scalia smuggled it into this offhand paragraph?

Defining "federalism" to exclude any issue where some federal law "explicitly supplants state authority" uses a verbal legerdemain to make a difficult question of statutory construction look easy, by implying that Congress' textually "express' endorsement of some sort of preemption also "expressly" defines the scope of state laws thereby preempted. Of course, "express" preemption clauses might "explicitly supplant state authority" over some ambiguously defined set of issues. In fact, as I noted w.r.t the SCOTUS's decision in Dan's City Used Cars v. Pelkey, intrinsic aids and the rest of the textualist machinery are generally useless for divining the scope of most preemption clauses.

If the mere existence of a vague preemption clause means that federalism canons are irrelevant, then vague preemption clauses can be stretched elastically, ERISA-style, to supplant all sorts of state policies that no one in Congress ever intended to touch. Eliminating federalism canons in misleadingly labeled "express preemption" cases has been an agenda item for the U.S. Chamber of Commerce at least since Altria Group v. Good. There is a principled theory to justify such a position: Caleb Nelson has argued that the U.S. Constitution's "non obstante" phrase in Article VI ("any Thing in the Constitution or Laws of any State to the Contrary notwithstanding") is a term of art intended to eliminate the canon against implied repeal that might otherwise induce courts to strain to save state laws from preemption by federal laws.

As an aesthetic matter, Caleb's theory is elegant and insightful (albeit mistaken despite these virtues, as I have argued elsewhere). But note that Justice Scalia's glib little paragraph does not set forth Caleb's or any other actual reasoning. Instead Scalia implies that, because preemption turns on the interpretation of a clause in a federal statute ("the meaning of that phrase is indisputably a question of federal law"), it somehow follows that norms of federalism are somehow irrelevant to the clause's interpretation, even if the clause is ambiguous. This is the conclusion of an argument masquerading as textualist legal reasoning: It is the sort of colossal non sequitur that begs the very question that needs to be decided -- namely, whether ambiguous federal statutory text should be read to import norms of federalism.

The notion that such an issue "has nothing to do with federalism" is plainly silly: If federal statutes are read expansively, then states' reserved powers pro tanto will be narrowed. It is equally odd to assert that “it is hard to spark a passionate ‘States’ rights' debate over that detail” of whether bureaucrats or judges resolve ambiguities in preemption clauses. At least since Altria v. Good, the SCOTUS itself has been closely divided over precisely this "detail." Moreover, the Court ought to be closely divided: The question of interpretative authority is hardly a "detail" if one believes that federal judges are likely to be more likely than mission-bound agency bureaucrats to understand and care about general aspects of our legal culture like federalism -- an entirely plausible belief, as Nina Mendelsohn has noted, that has been, in large part, confirmed by Catherine Sharkey's study of federal agencies' enforcement (or lack thereof) of federalism-promoting executive orders.

How could six justices join this empty bluster of a paragraph mischaracterizing one of the central federalism debates as a "faux-federalism argument" by making an egregiously faux-textualism argument? Were Justice Kennedy's clerks asleep? Or did they simply dismiss this paragraph as dicta on the assumption that the Court granted cert to decide only the question of whether Chevron applied at all (the so-called "Step Zero" inquiry), as opposed to the "Step One" question of how statutory ambiguities should be defined and resolved? (One might read Justice Breyer's concurrence as distancing his vote from the paragraph to the extent that he would use all traditional tools of statutory construction to resolve the Mead question of whether an agency had a delegation of gap-filling authority. But it is hard to tell, given that he "join[ed] such portions of [the majority's] opinion as are consistent with what I have written here," without specifying specific language to which he was objecting).

Dicta or not, Justice Scalia's paragraph is so oddly devoid of reasoning and so dangerously consequential if taken seriously, that it deserved to be called out. The Court decides only eighty-odd cases a year: Letting this sort of rhetoric slip by unnoticed strikes me as phoning it in.

Posted by Rick Hills on May 24, 2013 at 11:35 AM | Permalink


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Just a quick note -- perhaps Justice Kennedy did not feel like he could object because he was in the dissent.

Posted by: William Baude | May 24, 2013 12:00:00 PM

I don't quite understand how what Scalia's saying relates to what Nelson has argued about preemption. You have a federal statute that imposes a reasonableness limitation on how long local zoning authorities can take to render certain decisions. No one disputes that much. It's argued that whether a federal agency or a federal court decides what's reasonable is somehow a federalism issue, and Scalia says that either way, (a) local authorities' time to make decisions is being limited to some extent by federal law, and (b) either way, a federal actor is the one making the decision on what that limit means, precisely. So, federalism doesn't take a side in that dispute. Scalia doesn't say, as you claim, that "norms of federalism are somehow irrelevant to the clause's interpretation," which would be question-begging, just that norms of federalism don't bear on a choice between two federal interpreters. What Scalia really says is only wrong, if it's wrong, even according to you, because of "an entirely plausible belief" regarding an entirely empirical question about the differences between federal courts and agencies when it comes to "understand[ing] and car[ing] about" federalism - a belief which you say is confirmed by a single study that, as I read it, didn't compare agencies' understanding of federalism to courts' understanding (which I thought a lot of your work shows isn't so good either). Even if it turned out to be true that agencies "care" less about federalism than courts, which I confess seems pretty plausible to me too, would you really have the Court carve out an exception to Chevron for statutory ambiguities that touch on state power because we can't trust the agency to care about federalism? That seems overbroad. I think the correct way to handle the problem is to factor in federalism when deciding whether an agency's interpretation of a statute is reasonable; here for example, the fact that it's a local government that's being told to act in a reasonable period of time might make an agency interpretation that gave local governments two months unreasonable, whereas two months might be a reasonable reading of "reasonable period of time" had that language been directed to some private actor.

Posted by: Not so Blustery | May 24, 2013 12:16:15 PM

Kennedy is not normally reluctant to dissent separately: Why did he not call out the majority on this odd paragraph's dismissal of federalism?

There was not a single mention of "federalism" in Roberts' dissent: All of Roberts' rhetoric was libertarian, denouncing federal bureaucrats' "poking into every nook and cranny of daily life" (page 5), completely ignoring the real issue at stake in the case, which is city power versus agency power, not individual liberty versus agency power. That the dissent would simply ignore Scalia's dissing federalism suggests to me that federalism holds little appeal for Roberts. Note also that the dissent also ignored the "federalism" parts of Gonzales v. Oregon , discussing that precedent solely for the proposition that Congress sometimes delegates interpretative authority to multiple agencies. Given that the 1996 Telecommunications Act does not delegate power to multiple agencies insofar as cell 'phone towers are concerned, this side-stepping of federalism issues in Gonzales was especially odd.

In short, the dissenter's silence on federalism in the face of Scalia's breezy dismissal of federalism strikes me as either tacit endorsement (on Roberts' part) or sheer inattentiveness(on Kennedy's part).

Posted by: Rick Hills | May 24, 2013 12:17:23 PM

Yes, "Not So Blustery," I WOULD carve out an exception to the Chevron canon when agencies construe their power to invade subnational power. That is, I take it, an important function of the idea behind the Mad-Gonzales theory

The whole practical point of the Mead-Gonzales theory is that, because a federal agency should not trespass on another decision-maker's power, the courts should stand as an impartial referee between multiple decision-makers, deferring to none of them. Here, the only two decision-makers contending against each other are the city and the FCC. The court can defer to the city's interpretation of "reasonable" (by invoking some sort of federalism-promoting canon akin to Pennhurst, Gregory, etc), it can defer to the FCC's interpretation (by invoking Chevron), or it could defer to neither. It might be that subnational actors should never get deference when construing federal law: that's been a longstanding legal tradition at least since Hunter v. Martin's Lessee. But, at the very least, the Court should not put its finger on the scale in favor of the agency when the relevant statutory language clearly anticipates a division of authority between two potentially rival governmental actors.

Posted by: Rick Hills | May 24, 2013 12:29:47 PM

Writing a dissent just to point out a potentially problematic implication of an ambiguous paragraph is a dangerous strategy. If the majority doesn't respond, then the failure to respond can be seen as the majority's tacit endorsement of the implication. Alternatively, the majority might respond and defend the implication, making that bad implication clear. It's possible that the majority might take it out in response to the dissent, but it's not all that likely. Perhaps better to not bring attention to it.

Posted by: Orin Kerr | May 24, 2013 5:23:36 PM

Well, fair enough, Orin. Perhaps, federalism-lovin' guy that I am, I project when I accuse Scalia of bluster.

But it seems to me that, when the entire case revolves around a clash between an agency and a city and the majority devotes a separately numbered section of the opinion to brushing aside concerns of federalism, that someone ought to say a peep about federalism somewhere.

The only plausible argument for NOT extending deference to the FCC's interpretation of a vague and policy-laden term like "reasonable" is that the term should be construed as Congress' way of either a) delegating interpretative power to cities to have wide latitude in setting times for decision-making or b) appointing the courts as an impartial referee between cities and the FCC because of worries that the latter will short-change local democracy. I am not saying that either a) or b) are correct -- only that these are the only practically substantial reasons for opposing Chevron deference in this case. Both rest on considerations of federalism -- yet the three dissenters and the fice justices in the majority other than Scalia were silent about federalism. This strikes me as Hamlet without the Prince.

Posted by: Rick Hills | May 24, 2013 5:57:21 PM

I wouldn't read too much into Kennedy's decision not to join the Nelson theory, or into any particular decision not to write a separate opinion. The writing process for separate opinions depends on a range of quirky factors that generally have little to do with the merits. And the non-join in PLIVA was unexplained, so you don't know whether he felt strongly opposed to the theory, or if he simply didn't know what to think and didn't think he needn't to knock down the presumption against preemption in that particular case.

Posted by: anon | May 24, 2013 10:21:07 PM

I'm a little late to this party, but anyone still thinking about Scalia's take on "federalism" and the City of Arlington case ought to take a look back at Scalia's article, "The Two Faces of Federalism":

"I could multiply the areas in which one would expect economic conservatives to seek establishment of a federal policy excluding state regulation ... I urge you, then -- as Hamilton would have urged you -- to keep in mind that the federal government is not bad but good. The trick is to use it wisely." 6 Harv. J. L. & Pub. Pol'y 19 (1982).

In that article, the FCC was Scalia's primary example of a place where federal regulation would do well to preempt state law. Then again, this couldn't have been very surprising, given Scalia's own roots -- i.e., Nixon's office of Telecomm Policy.

Posted by: Adam White | May 29, 2013 3:24:14 PM

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